Once the right to keep and bear arms is separated from its long-established tether to a militia purpose, it is unclear what legal standard gun laws would need to survive constitutional challenge. There is little doubt, however, that recognition of a broad private right to be armed will create a new presumption against the constitutionality of gun laws, whereas currently there is a virtually absolute presumption in favor of their constitutionality. Guns would achieve a specially protected constitutional status imposing unique limits on the legislative authority of the elected representatives of the people that would apply to no other dangerous products. Ironically, regulation of guns, the only publicly-available consumer product designed to inflict lethal injury, would be required to meet a higher constitutional standard than regulation of cars, lawnmowers and other dangerous products capable of inflicting lethal injury, but not designed to do so.
Dennis A. Henigan et al
Director of the Brady Center to Prevent Gun Violence Legal Action Project
Some time after March of 2007
Second Amendment Fantasy–The Brady Center’s Critique of the Parker v. District of Columbia Decision
Emphasis in the original.
[Henigan et al overlook two important points:
- Federal regulation of cars, lawnmowers, etc. is prohibited by the 10th Amendment.
- Regulation of a products unintended consequences is much different than that for which it is designed.
Ignoring the first point for today and concentrating on the second point a little thought will reveal the regulation Henigan supports is much different than that of cars and lawnmowers.
A regulation requiring a self-propelled lawnmower to turn itself off when the operator releases their hands from the controls would be analogous to something like requiring a gun to tolerate being dropped without discharging. Which, if it were done by a state legislature, I wouldn’t pick a constitutional fight over. A regulation which restricted self-propelled lawnmowers to government employees is analogous to the type of restrictions Henigan advocates.
Beyond the above points the 2nd Amendment specifically protects the right of the people to keep and bear arms. So yes, assuming the Heller (formerly Parker) decision goes our way, guns would achieve a specially protected constitutional status imposing unique limits on our government. This was the original intent of the 2nd Amendment.
Therefore a more succinct response to Henigan et al would be, “And your point is?”–Joe]
I almost used this exact paragraph from here as my QOTD but decided to look around some more and save that for some other time. I then saw this exact paragraph while visiting here and again was sorely tempted. As I continued to wander my RSS feeds revealed Sebastian and Kevin eliminated my backups. Either it is a conspiracy against me or great minds think alike. I’m inclined to think the later because Say Uncle has the same complaint as I do.